EXHIBIT 10.37
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is effective as of September 1,
2004 by and between PATRIOT SCIENTIFIC CORPORATION, a Delaware Corporation (the
"Company"), and LOWELL GIFFHORN (the "Employee").
The parties agree as follows:
1. Term of Employment. The Company hereby agrees to employ the Employee and the
Employee hereby agrees to accept employment as Executive Vice President and
Chief Financial Officer (CFO) of the Company for a one year period commencing
September 1, 2004, or for such shorter period as may be mutually agreed by the
Company and the Employee (the "Employment Period'), subject to the terms and
conditions of this Agreement. In his capacity as CFO of the Company, Employee
will be responsible for the general duties associated with his title including,
but not limited to management of the financial affairs, investor relations,
and/or such other management duties on behalf of the Company as may be assigned
to him from time to time by the Chief Executive Officer ("CEO") of the Company.
The Employee agrees that, during the Employment Period, he will serve the
Company faithfully and to the best of his abilities, devoting substantially all
his time, energy and skill to the activities of the Company and the promotion of
its interests. The Employee agrees not to work for or participate in any
business that competes in any manner with the business of the Company during his
employment with the Company, including after hours, or on weekends, or during
vacation time, even if only organizational assistance or limited consultation is
involved.
2. Compensation and Benefit Plans.
(a) The Employee shall receive a base salary during the Employment
Period which shall be payable in installments at such times as other employees
are paid but in any case at least monthly as follows: The Employee shall receive
a gross base salary of not less than twelve thousand dollars ($12,000) per month
for his services as CFO. The base salary may be subject to other upward
adjustments as may be recommended by the CEO of the Company to the Board of
Directors of the Company (the "Board") and as shall be approved by the Board and
Compensation Committee.
(b) The Employee may receive, at the sole discretion of the Board of
Directors of the Company, an Annual Incentive Bonus up to 50% of the total
yearly base compensation for the applicable year (the "Annual Incentive Bonus").
The Annual Incentive Bonus payment will be based upon mutually agreed upon
objectives and levels of performance, if any, and shall otherwise be at the
discretion of the Board of Directors.
(c) The Employee shall be eligible to participate in all employee
benefit programs, if any, maintained by the Company, including, but not limited
to, group life insurance, medical, dental, retirement and pension plans, any
deferred compensation profit sharing plans, 401(k) savings plan, and other such
fringe benefits as are or may be available from time to time to senior Employees
of the Company, including without limitation a car allowance of $400 per month.
The Company reserves the right to modify or eliminate such fringe benefits on a
prospective basis, at any time, effective upon 60 days notice to Employee.
During the Employment Period, the Employee shall accrue vacation at the rate of
4 weeks per annum.
(d) The Company will pay or reimburse the Employee during the
Employment Period for all expenses normally reimbursed by the Company and
reasonably incurred by the Employee in furtherance of his duties hereunder
including but not limited to, expenses of entertainment, travel, meals, hotel
accommodations and the like upon the submission by the Employee of vouchers or
an itemized list thereof and as may be required in order to permit such payments
as proper deductions for the Company under the Internal Revenue Code of 1986 and
the rules and regulations adopted pursuant thereto now or hereafter in effect.
Any and all business expenses exceeding $100.00 shall be pre-approved by the CEO
of the Company.
3. Stock Options.
(a) The Employee is hereby granted an option to purchase 300,000
shares of the Company's common stock with an exercise price of the
average of the closing bid and asking price ($.038) as of August 31,
2004. These shares will be fully vested as of September 1, 2004.
(b) The Company shall grant to the Employee an option to purchase
125,000 shares of the Company's common stock on August 31, 2005 at
an exercise price of the average of the closing bid and ask price as
of August 31, 2005 and fully vested as of August 31, 2005.
(c) The Company shall grant to the Employee an option to purchase
125,000 shares of the Company's common stock on September 1, 2006 at
an exercise price of the average of the closing bid and ask price as
of August 31, 2006 and fully vested as of August 31, 2006.
4. Termination of Employment.
(a) Termination for Cause by Company. The Company may terminate
Employee's employment immediately at any time for good cause, including, but not
limited to: (a) acts or omissions constituting gross negligence, recklessness,
gross misconduct, dishonesty or an act of moral turpitude on the part of
Employee; (b) Employee's material breach of this Agreement or any other
confidentiality agreement between the Company and Employee; (c) Employee's
conviction or entry of a plea of nolo contendere for fraud, misappropriation or
embezzlement, or any felony or crime of moral turpitude; (d) Employee's breach
of fiduciary duty toward the Company; (e) Employee's inability to perform all of
the essential functions and duties of Employee's position, with or without
reasonable accommodation; (f) Employee's death; (g) improper actions taken to
impair the Company's duly held licenses; (h) a determination or request by an
appropriate regulatory authority that the Employee be removed or disqualified
from acting as an officer of the Company; (i) Employee's failure to
satisfactorily perform his duties to the Company, provided that Employee fails
to cure any such failure within 30 days after written notice from the Company of
such failure, provided further, however, that such right to cure shall not apply
to any repetition of the same failure previously cured hereunder; or (j)
Employee's violation of any material rule, regulation or policy of the Company
that may be established and made known to the Company's employees from time to
time. In the event Employee's employment is terminated in accordance with this
subparagraph 4.(a), Employee shall be entitled to receive only the Base Salary
then in effect, prorated to the date of termination, and any benefits and
expense reimbursements to which Employee is entitled by virtue of his prior
employment with the Company through the date of termination (collectively
referred to as "Standard Entitlements."). All other company obligations to
Employee pursuant to this Agreement will become automatically terminated and
completely extinguished. Executive will not be entitled to receive any severance
payment or any part thereof.
(b) Termination Without Cause By The Company. If the Employee's
employment is terminated for other than cause by the Company, then the Employee
is entitled to severance payments equal to four (4) months of the then current
base salary payable in a lump sum payment. providing Employee executes a full
general release, releasing all claims, known or unknown, that Employee may have
against the Company arising out of or any way related to Employee's employment
or termination of employment with the Company. In such event, the Employee shall
have the right to continue coverage in accordance with COBRA, at his expense,
under group life insurance, medical, and dental healthcare plans of the Company
by paying the applicable group premium(s) as if the Employee were still
employed.
(c) Voluntary Resignation By Employee. Employee may voluntarily
resign Employee's position with the Company, at any time, on thirty (30) days
advance written notice. The Company reserves the right, exercisable in its sole
discretion, to pay Employee his Base Salary and the value of other contractual
benefits provided herein, on a pro rata basis in lieu of the required noticed.
In the event of Employee's resignation, Employee will be entitled to receive the
Standard Entitlements to the date of resignation and no other amount for the
remaining term of this Agreement, if any. All other company obligations to
Employee pursuant to this Agreement will become automatically terminated and
completely extinguished. Employee will not be entitled to receive any severance
payment.
(d) Change of Control. If within six (6) months of a Change in
Control, as that term is defined herein, Employee refuses to accept or
voluntarily resigns from a position other than a Qualified Position, as that
term is defined herein, Employee shall receive severance compensation equal to
twelve (12) months of the then current base salary payable in a lump sum payment
providing Employee executes a full general release, releasing all claims, known
or unknown, that Employee may have against the Company arising out of or any way
related to Employee's employment or termination of employment with the Company.
A "Change in Control" means the acquisition, directly or indirectly, of more
than 40% of the outstanding shares of any class of voting securities of the
Company by one person or one entity that is not an existing shareholder as of
the date of this Agreement, or a merger, consolidation or sale of all or
substantially all of the assets of the Company, such that the individuals
constituting the Board of the Company immediately prior to such period shall
cease to constitute a majority of the Board, unless the election of each
director who was not a director prior thereto was approved by vote of at least
two-thirds of the directors then in office who were directors prior to such
period. Notwithstanding the foregoing, an acquisition of the requisite
percentage of voting securities in connection with a public offering of
securities by the Company for the primary purpose of providing capital resources
to the Company shall not be considered a "Change in Control" for purposes of
this paragraph. "Qualified Position" is an Employee officer position with the
entity surviving the Change in Control with substantially the same
responsibilities as those held by the Employee on the date of the Change in
Control as determined by the Company's compensation committee in its sole
discretion. Also, notwithstanding the foregoing, if the Company determines that
the amounts payable to Employee under this Agreement, cause such payments to be
treated as excess parachute payments within the meaning of Section 280G of the
Internal Revenue Code, the Company shall reduce the amount payable to Employee
under this Section 4(d) to an amount that will not subject Employee to the
imposition of tax under Section 4999 of the Internal Revenue Code; provided,
however, that this provision shall apply only to payments to be made under this
employment agreement and Employee by the Company.
5. Trade Secrets of the Company, Patents and Inventions. Employee agrees
to read, sign and abide by the Company's Proprietary Information and Inventions
Agreement which is attached as Exhibit 1 and incorporated herein by reference.
6. Severability. In the event that any provisions or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
7. Assignment. The rights of the Company (but not its obligations) under
this Agreement may, without the consent of the Employee, be assigned by the
Company to any parent, subsidiary, or a successor of the Company; provided that
such parent, subsidiary or successor acknowledges in writing that it is also
bound by the terms and obligations of this Agreement. Except as provided for in
Section 9 hereunder the Employee may not assign all or any of his rights, duties
or obligations hereunder without the prior written consent of the Company.
8. Survival of Certain Provisions. The covenants and agreements set forth
in Paragraph 5 through 18 of this Agreement shall survive termination of the
Employee's employment and/or this Agreement, and shall remain in full force and
effect regardless of the cause of such termination.
9. Beneficiaries: References. The Employee shall be entitled to select
(and change) a beneficiary or beneficiaries to receive any accrued compensation
or benefit payable, if any, following the Employee's death, and may change such
election, in either case, by giving the Company written notice thereof. In the
event of the Employee's death or a judicial determination of his incompetence,
reference in this Agreement shall be deemed, where appropriate, to refer to the
Employee's beneficiary, estate, committee, conservator or other legal
representative.
10. Notices. All notices, requests, demands and other communications shall
be in writing and shall be defined to have been duly given if delivered or if
mailed by registered mail, postage prepaid;
(a) If to the Employee, addressed to him at the following address as
may be changed in writing from time to time:
Lowell Giffhorn
10875 Kemah Lane
San Diego, CA 92131
(b) If to the Company, addressed to:
CEO
Patriot Scientific Corporation
10989 Via Frontera
San Diego, CA 92127
or to such other address as any party may request by notice given as aforesaid
to the other parties hereto.
11. Titles and Headings. Titles and headings to paragraphs hereof are for
the purposes of references only and shall in no way limit, define or otherwise
effect the provisions hereof
12. Governing Law. This Agreement is being executed and delivered and is
intended to be performed in the State of California, and shall be governed by
and construed in accordance with the laws of the State of California.
13. Agreement to Arbitrate. Employee and Company agree to arbitrate any
controversy, claim or dispute between them arising out of or in any way related
to this Agreement, the employment relationship between them, and any disputes
upon termination of employment in accordance with the Arbitration Agreement
attached hereto as Exhibit "2" and incorporated by this reference as though
fully set forth herein.
14. Counterparts. This Agreement shall be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. It shall not be
necessary in making proof of this Agreement to produce or account for more than
one original counterpart.
15. Entire Agreement. This Agreement, including the Exhibits attached
hereto, contains the entire agreement of the parties hereto and may be modified
or amended only by a written instrument executed by the parties hereto. This
Agreement supersedes any previous oral or written communications,
representations, understandings or agreements with Employer or any officer or
agent thereof through the date the Agreement is executed by the parties.
Employee understands that no representative of the Company has been authorized
to enter into any agreement or commitment with Employee which is inconsistent in
any way with the terms of this Agreement.
16. Good Faith. Each of the parties hereto agrees that he or it shall act
in good faith in all actions taken under this Agreement.
17. Waiver. No waiver of any of the provisions of this Agreement shall be
deemed to be or shall constitute a waiver of any other provision of the
Agreement, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver of any provision of this Agreement shall be binding upon the
parties hereto unless it is executed in writing by the party making the waiver.
18. Interpretation; Construction. The headings set forth in this Agreement
are for convenience only and shall not be used in interpreting this Agreement.
This Agreement has been drafted by legal counsel representing the Company, but
Employee has participated in the negotiation of its terms. Furthermore, Employee
acknowledges that Employee has had an opportunity to have it reviewed by legal
counsel, if desired, and, therefore, the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of
the day and year first above written.
PATRIOT SCIENTIFIC CORPORATION
By: /S/ J.E. WALLIN
------------------------
J.E. Wallin, CEO
Employee:
By: /S/ LOWELL GIFFHORN
-------------------
Lowell Giffhorn